COUNCIL ON BOTH SIDES OF FENCE RE COVENANTS

The integrity of the restrictive covenants on land in the Glen Towers estate, limiting development on each block to a single dwelling, are now under threat from a developer who has consolidated three allotments in Gilmore Rd and is applying for their removal to enable the construction of a three storey apartment development to height of 11 metres by providing the minimum land area of 1800m2.

Manningham had stated they could not foresee any further development on the estate and had continually reassured the beneficiaries that there was no intention to remove the covenants even though council, being the proponent and designer, had already provided the catalyst for their removal by zoning the estate in the sub Precinct A for redevelopment. The then Manningham CEO had sent a letter to beneficiaries which said in part; “we advise that Council has never discussed any intent; holds no plan or desire; and, has not

foreshadowed any intention or interest at any time to take any action that would interfere with the protection that beneficiaries enjoy with restrictive covenants”.

Click to enlarge

Residents Want Restrictive CovenantsClick to enlarge

Even the usually biased government independent Panel found “a clear difference in character between Clay Drive and Walker Street (the Glen Towers estate) based on street width, landscaping and use (or not) of footpaths”.

“Based on current character, it is difficult to envisage the appropriateness of 11 metre high apartment dwellings in the Walker Street area”

“Panel is of the view that this area south of Doncaster Road is not an area that should or needs to support substantial change proposed as precinct A in the Manningham Residential Guidelines. “This is due to the topography, existing and proposed access arrangements and physical impediments to easily walking to the core of the activity centre, being Westfield shoppingtown”

Gilmore Road House Numbers Not Disclosed in ReportClick to enlarge

“Whilst some redevelopment would be expected in this area, it would need to be in character with the local area which is dominated by single dwellings in garden setting”. “Given the topography of the area, and the role and function of Doncaster Road (even in a modified reduced capacity as suggested by Council), this area will most likely remain somewhat isolated from the core activities of the centre”.

“The Panel acknowledges that some of the shared pathways will be too steep for all bicycle users. It may be that some bicycle users may have to dismount and wheel their bicycles up some steep sections”.

The restrictive covenant is worded as follows;

The said lot on the said plan of subdivision is sold subject to the express condition that the purchaser his/hers administrators or transferees will not erect nor allow to permit to be erected on the said lot any building other than a single dwelling house together with usual outbuildings and such dwelling house shall have external walls of brick and roof of slate or tile and this condition will be inserted in the transfer to the purchaser (in a form a form to be prescribed by the vendors or their solicitors) as a restrictive covenant by the purchaser to be run with the land and to be noted as such on any certificate of title to be issued.

It should also be noted the following conditions apply under section 60 subsection 5 of the Planning and Environment Act 1987:
The responsible authority must not grant a permit which allows the removal or variation of a restriction referred to in subsection (4) unless it is satisfied that –

(a) the owner of any land benefited by the restriction (other than an owner who, before or after the making of the application for the permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction; and

(b) if that owner has objected to the grant of the permit, the objection is vexatious or not made in good faith.

Following this Council cannot grant a permit that allows the removal of this covenant under this application as other owners of the land who benefit from this restriction will suffer detriment as outline above.

19 Responses to “COUNCIL ON BOTH SIDES OF FENCE RE COVENANTS”

The new owner of No 7 Gilmore Road who also happens to be the owner of No 3 & No 5 Gilmore, has lodged a town planning application with Manningham City Council to have our Restrictive Covenant, which refers to “the restriction of single dwellings per lot”, removed.
I have lodged an objection at the Manningham council against the application. My wife believes they are hoping the community will lose interest and only a few objections will be received giving the impression that most local residents approve the application. Which, in the event, they could apply to the minister with the help of Manningham council to have the covenants removed.
As we all know, the removal of the covenant will ultimately open the floodgate to allow the construction of town houses and apartments within our streets which typically translates into traffic, parking, privacy, noise and safety issues.
I don’t trust our council planners.

This application to remove the restrictive covenants will apply to all land on the Glen Towers Estate forthwith, if approved.
What makes the prospect of having this application approved by council is that Manningham planners “owe” these overseas developers for taking over the major building sites on Doncaster Hill, which up until recently, was shaping up to be the white elephant of the century. And appealing to Vcat to maintain the integrity of these covenants might be a bit be like complaining to your Mother-in-law about your wife. I hope the councillors can get on side and put a stop to the stealth and deception.

Why did council include the Glen Towers in a sector set aside for high rise apartments when they knew there was a covenant limiting each block of land on the estate to building a single dwelling? Had council anticipated that all the beneficiaries would somehow agree to have the covenant removed despite having initially paid a higher price for the privilege? Surely not. While it would seem most improper to suggest, it is difficult not to conclude that council may have encouraged the applicant because it knew in advance that it would be approved at a higher level outside of Manningham council’s jurisdiction. We have already lodged our objection.
David

We, as owners of land on the Glen Towers Estate, had purchased on the understanding that the restrictive covenant would be binding on us and all fellow title holders. Any attempt to remove the covenants on the estate would be unlawful and totally against the spirit and intent of the covenant which had been agreed upon by all beneficiaries at the point of sale.

It all boils down to our trust in our elected representatives on Council.
It is amazing how rarely our elected Councillors are seen at the forefront representing residents.
Will they be re-elected in 2016.

Not if I can help it. They don’t read reports and have no interest in the stopping these ridiculous planning decisions. They all have their own particular agendas; one wants to use the council as a launching pad for a political career, another wants to use the council to promote an own business, another who has been there too long is still trying to talk like Gough Whitlam. The councillors that are not representing the Koonung ward are happy for dodgy development to be built anywhere as long as it is not in their ward.
Friend of Glen Towers

WITHOUT PREDJUDICE
I have attached an excerpt from a sales summary published on 30/4/15 which I hope you will include in this article. The report did not reveal the numbers of three houses sold in Gilmore Road (the Glen Towers estate) which was most unusual. My husband thought they might have been the same three properties adjoining that have been recently consolidated by the current applicant who wants to remove our covenants. You don’t have to be rocket scientist to work out what the motive could be in not revealing the house numbers any earlier than the applicant had to, if indeed they were the same adjoining properties at 3,5 and 7 Gilmore Road which will enable a three storey apartment development that will occur if our restrictive covenants are removed.

The house we built and live in is on one of the blocks affected by the restrictive covenants. There is absolutely no way we will be signing an agreement to facilitate their removal full stop. Likewise our neighbour who was one of the first to purchase land on this estate. My advice to any would be developer is go elsewhere!

We would have no objection to the restrictive covenants being removed providing it was unanimously agreed upon by the beneficiaries. However it appears there is now a plan afoot to have them removed unlawfully without consent.

This is not about a multicultural nation making room for migrants. This is all about the wealthy citizens of another country trying, apparently with the help of our council, to remove our restrictive covenants. They are using Doncaster to park their profits and wealth which will change the face of Manningham forever. Why are they being allowed to force us out of the area we love?

The most important step is to get a copy of the Robert Easton planning report from council lodged with the application to remove the covenant. This will set out the arguments that the owner of 7 Gilmore Road has submitted to Council. It will also set out the map of those lots in the Glen Towers estate that take the benefit of the covenant. I have had a look at the restrictive covenant and not all the lots in the estate take the benefit. It is only those lots that were not transferred at the date of the covenant that are entitled to the benefit. However, I feel a majority of the lots in the estate take the benefit as the covenant is dated 23rd September 1960 and many of the lots were transferred after that date.

Secondly, Robert Easton has been involved in preparing planning reports for the removal/variation of covenants all over Melbourne . Examples of his cases are :

I believe the beneficiaries of the Glen Tower Estate have a very strong case to protect the covenant if the matter were to go to VCAT, because there is a “network of covenants” in the Estate. The test to remove or vary covenants that were made prior to 25 June 1991 is very high and the owner of 7 Gilmore Road would have to prove that there would be no detriment (including perceived detriment) to any of the beneficiaries of the covenant. Accordingly, I believe that even Council would not be able to remove the covenant because it could not be satisfied that no beneficiary would not suffer any form of detriment. I suspect this matter will most likely end up at VCAT.

I have read the permit application prepared by Easton Consulting.The permit applicant has not made the application for removal of the covenant in conjunction with any application for a specific development. There are no development plans lodged with Council.The Council therefore does not have any real basis for assessing possible detriment. This makes it very difficult, indeed virtually impossible, for Council to be satisfied that a beneficiary will be unlikely to suffer any detriment.

Does anybody know what is happening to 7 Gilmore Road now? Looks like construction fences have gone up, the house has been put back into possession of the owner (after being leased for some time) and it doesn’t seem like any planning docs are lodged with council? (publicly available anyway).

Does anybody know what may be happening at 7 Gilmore road now? Construction fences have gone up today. No permit in site on the council website (except for this withdrawn permit discussed in this thread). Owner recently took back property from leased tenants…